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Saturday 23 March 2019

Advice: Mediation - the wisest approach in boundary disputes

 

You should always seek consent of your neighbour before starting any boundary works
You should always seek consent of your neighbour before starting any boundary works

Theresa Murphy

A recent dispute in Galway relating to farm boundaries has played out dramatically before the courts and brought to mind the many difficulties faced throughout the country that relate to land divisions and boundaries.

It is an issue as old as land ownership itself and can cause great upset and acrimony between otherwise peaceful neighbours. Some of the most common issues that arise relate to the upkeep of the boundary, ownership of the boundary and boundary encroachment for any number of reasons.

Who owns a property boundary?

Common law rules presume that walls located on the boundary between two parcels of land are owned jointly by the adjoining landowners.

This is a presumption in the law and can be rebutted with strong evidence to show the structure is owned outright by one of the landowners if that is the case. However, even where a structure or piece of land is owned by one individual, a neighbouring individual may have rights over that structure or land.

There are three main types of boundary ownership:

Outright ownership, which occurs where the boundary is owned outright by one landowner.

Divided ownership is where a structure may be divided longitudinally where each adjoining landowner owns their 50pc share up to the central line. Each owner may do as they wish with their part of the divide provided they do not damage or cause the collapse of the other owner's structure.

Divided ownership with mutual rights of support is similar to divided ownership, but each share is subject to a right of support owned by the other owner, known as a cross-easement.

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Many landowners may not even know how the dividing structure is owned legally but you should investigate this before taking any action or carrying out any works.

To establish ownership of the boundary, you should start by consulting the land registry or Property Registration Authority of Ireland which holds computerised records relating to land ownership throughout the country. If your property is unregistered, you should refer to the deeds. Maps generally accompany land folios, which may help clarify ownership.

You should approach any boundary dispute with caution. If you make a false or malicious statement regarding the ownership of land, you may be accused of "slandering the title" of the other owner.

Section 42 of the Defamation Act 2009 provides that a person can sue another for compensation if they have suffered a loss because of such slander.

Once you have established ownership or a right to carry out works on a boundary, you should also bear in mind that if you carry out works on or near your boundary without your neighbour's consent, you may be open to a claim of trespass as well as nuisance arising from any inconvenience caused by the works.

You should always seek the consent of your neighbour. If agreement can be reached, this could be written down so the terms of the consent and the works are clear to both you and your neighbour. You should not go outside of what is permitted by such consent.

If your neighbour is refusing their consent, you may obtain a works order. A works order will allow you to carry out works, subject to whatever terms and conditions the court decides should be attached.

Among other things, a works order may authorise you, or people authorised by you, to enter your neighbour's building or land for any purpose connected with the works and/or require you to indemnify or give security to your neighbour for damages, costs and expenses caused by or arising from the works or likely to be caused or to arise.

The procedure for getting a works order is set out in Order 93A of the District Court Rules (SI 162/2010). You must notify your neighbour of your intention to apply for a works order. The required form is available from the District Court clerk.

Trees on the boundary

Another common source of contention in the countryside relates to trees on the boundary. A tree on a boundary will generally be assumed to be the property of both adjoining landowners.

You do not have a right to cut down such a tree without the consent of your neighbour. Overhanging trees or encroaching roots may be regarded as a nuisance and you are entitled to cut back the overhanging or encroaching branches or roots to the boundary line. You do not need the permission of the tree owner to do this IF you can do it without going on to the other owner's property. However, as with all such matters, it would be preferable to discuss and agree what action is required.

You do need to be careful to ensure that you do not leave the tree or, for example, a boundary wall in a dangerous condition as a result of your actions.

If you need to enter a neighbour's property and cannot get agreement, you may apply for a works order as previously mentioned.

Stock proofing

There is no general rule that requires a landowner to maintain their land in a stock-proof condition, however, if you are an applicant to any of the EU area-based schemes, this may be a requirement for eligibility for payment.

Regardless of these schemes, if a person is keeping any sort of livestock, they will be liable for their stock in accordance with the law and any damage that they may do, so stock-proofing land may become necessary as the owner must take reasonable care that damage is not caused by an animal straying on to the public road.

You should try to resolve any boundary dispute issues directly with your neighbour or failing that, through mediation.

Legal issues involving court proceedings become expensive very quickly and can sour relations between neighbours for generations.

If your dispute cannot be resolved between you, the ­matter may be dealt with by either the Circuit Court or the High Court depending on the rateable valuation of the land.

Theresa Murphy is a barrister based in Ardrahan, Co Galway

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